The following is a brief discussion about a new California case in which the court held that a party filing a petition in probate to enforce a no contest clause triggers the anti-SLAPP statute. If you have never been involved in the anti-SLAPP statute, it is a big deal. The case is Urick v. Urick, California Court of Appeal, Second Appellate District, Case No. B278257 (October 5, 2017).

Summary. Filing a petition for instructions in probate, claiming that a trustee or beneficiary had triggered a no contest clause by filing her prior petition to reform or modify a trust, is a claim that triggers prong one of the California anti-SLAPP statute Cal. Code Civ. Proc. §425.16, which means that the party seeking to claim and enforce that the no contest clause was triggered must be prepared to satisfy prong two of the anti-SLAPP statute which requires him to sufficiently establish a reasonable possibility of prevailing on the claim that the no contest clause was triggered and violated.

Takeaway. If you bring a claim to enforce a no contest clause based on an opposing party’s prior petition filed in probate, you must be prepared at the time of your filing to establish to the court, based on evidence and declarations, that you have a reasonable possibility of prevailing on your claim that the other party had triggered and violated the no contest clause.

Urick is also interesting for the court’s discussion whether the previously filed petition to reform or modify the trust triggered the no contest clause, including the discussion whether that previously filed petition was filed by the petitioner as a beneficiary of the trust or as the trustee of the trust and whether there was really a distinction that mattered under the facts of the case.

Other thoughts about the anti-SLAPP statute. I have been involved in Cal. Code Civ. Proc. §425.16 motions. It is my opinion that it is a deeply flawed statute except possibly in really obvious and clear situations and in those cases the party who has those defenses has other remedies such as a demurrer, motion to strike, or motion for summary judgment or summary adjudication. The anti-SLAPP statute should be revoked or very significantly amended and limited. To add further injury, the filing of an anti-SLAPP motion automatically stays all discovery unless a motion to allow and compel discovery is brought and the court grants that motion – thus, strategically a party might bring an anti-SLAPP motion simply to see if they can prevail even if their arguments and chances of prevailing are not good – and the statute further provides that if a party prevails on an anti-SLAPP motion they are entitled to attorneys’ fees whereas if a party defeats an anti-SLAPP motion the statute does not provide that they are entitled to recover attorneys’ fees. The anti-SLAPP statute is ripe for abuse or use in situations that might be counter to other public or judicial policies, which the court in Urick appeared to recognize, but as the court noted, nevertheless the statute is still on the books and is applicable unless and until the Legislature does something about the statute.

Here’s a different presentation approach – please do pass it along to your contacts and people who would be interested. This is an important topic that needs more discussion. Thank you. Dave Tate, Esq. (San Francisco and California)

If you are a trustee you need to know your responsibilities, and if you are a beneficiary you should know your rights. The following is a summary paper discussing both the responsibilities and the rights. Of course the California Probate Code is considerably longer and more detailed than the points discussed in this paper, there are also case law interpretations, and every case and situation is unique, but the paper will give you good insight. Click on the following link for the paper and discussion, A Summary of California Trustee and Beneficiary Responsibilities and Rights Dave Tate Esq 01052016.

I was initially going to make this discussion as a video, and I still might; however, the video obviously takes more time. Below is the discussion about California conservatorships – specifically, what is a California conservatorship, an overview.

First – a reminder and an obligatory disclaimer – this discussion is only a summary of a complicated topic. You need to consult with an attorney about your situation. You cannot rely on this discussion for your situation. And this is not a solicitation for services inside or outside of California, I only represent clients in California, I don’t know anything about your situation or case, and you have not hired me for your situation or case.

Now, that having been said, the following is an overview discussion about California conservatorships.

A conservatorship is a court proceeding where the court legally appoints someone to make and manage personal, medical, daily living, residential placement, or financial matters and decisions for another person.

The person whose rights are being taken away or limited is called the conservatee. The person who is being appointed to manage matters and make decisions for the conservatee is called the conservator.

A conservatorship is a serious legal proceeding because the court, which is a state governmental entity, is being petitioned to take away or limit some of the prospective conservatee’s freedoms and personal and constitutional rights.

The conservatee has the right to fight or oppose the conservatorship, who might be appointed, and the powers of the conservator. And a prospective conservatee has the right to a jury trial.

You might ask, when is a conservatorship needed? Typically a conservatorship might be needed when a person can no longer make and manage the personal, medical or financial matters and decisions for herself or himself, and she or he hasn’t legally appointed someone else to handle those matters and decisions.

So, for example, a conservatorship might be needed if there are no, or insufficient, power of attorney and trust documents, and the person no longer has the mental capacity to execute those documents or refuses to do so.

On the other hand, a conservatorship should not be granted if there is a less restrictive way to provide the help or assistance that is needed, and if the court grants the petition for conservatorship, the court can order only the least restrictive terms, conditions and limitations that are necessary under the circumstances.

The person who is petitioning for conservatorship has the burden of producing sufficient admissible evidence to establish that the court should grant the conservatorship. Conservatorship proceedings can be very contentious.

If a conservatorship is granted, the case remains with the court for future review of the actions taken or not taken by the conservator, accountings if the conservatorship is of the estate, and whether the conservatorship is still needed.

Often a conservator is required to make very important and serious decisions. The conservatee and other people can oppose or object to what the conservator is going to do or has done. Sometimes the case will go back to court for the court to make decisions or orders.

The conservator needs to be represented by an attorney. The conservatee will be represented by an attorney if the conservatee requests one. And in conservatorship disputes it is common for other family members or friends to also be represented by legal counsel.

Recent California conservatorship court decisions have dealt with conservatee’s rights including the right to a jury trial, and in a very recent case the appellate court overruled the trial court, holding that the conservatorship should not have been granted because a friend had instead offered to provide the help and assistance that the prospective conservatee needed.

I have already explained that a prospective conservatee has the right to oppose the conservatorship, and to a jury trial.

You should also be aware that if the conservatorship is granted, the conservatee might also continue to disagree with decisions and actions that are being made or taken.

And I have also seen situations where the preexisting relationship between the conservatee and the conservator was forever damaged, and situations where the prospective conservatee, or the actual conservatee if the conservatorship was granted, then sought to disinherit the person who petitioned for conservatorship or who was appointed by the court to serving as the conservator.

There are many provisions in the California Probate Code that discuss conservatorship proceedings and duties and rights. There are too many provisions to cover in these materials. However, generally you can look at Probate Code sections 1400 through 3212. Other Probate Code sections are also applicable.

In addition to the conservatee’s rights, I also find particularly interesting and important the provisions that relate to conservator duties and decision making, including how the conservator should go about making decisions and what to consider, possibly including the wishes of the conservatee.

On July 14, 2016, the California Court of Appeal for the Sixth District issued its decision in Gregge v. Hugill, Case No. HO40663. Viewed most simply, the Court determined that Appellant had standing to bring his petition under California Probate Code section 17200 in which he alleged lack of testamentary capacity, undue influence and elder abuse, and that Probate Code section 17202 and another beneficiary’s disclaimer did not operate to defeat or eliminate Appellant’s pecuniary interest and standing to bring his petition and for trial thereon.

But viewed in its entirety, the decision in Gregge v. Hugill affirms policies that favor a party’s entitlement to a determination on the issues and the claims alleged, arguably disfavors claim forfeiture arguments, and affirms that estate planning document, i.e., will and trust, and inheritance contest determinations and findings should be based on the decedent’s intent.

The following are six snapshots from the opinion in Gregge v. Hugill which will provide you with some of the Court’s insight (the first snapshot is only of the case caption).

-When is the named attorney in fact actually acting as an attorney in fact under the power of attorney;

-Is the attorney in fact a fiduciary, and if he or she is actually acting as a fiduciary, for what is he or she a fiduciary;

-Can someone be acting as a fiduciary in some situations or with respect to some issues and decisions, but at the same time not for other situations, issues and decisions (and related, the principal doesn’t necessarily lose decision making over all situations, issues and decisions, right?); and

-The specifics of whether acting as a fiduciary in a particular situation does or does not switch the burden of proof, and if it does, in what manner, to what extent, and for what events or actions is the burden of proof switched?

These are all important issues, and they are becoming more important. Cases that deal with powers of attorney or even these issues usually don’t go into detail, but many times simply find in a conclusory fashion that someone was a fiduciary so for all purposes and for all events or actions the burden of proof is shifted, and all depending on the judgment of the trier of fact which is often a single judge. I submit that this approach is way to simplistic, conclusory and lacking in critical legal analysis.

The California Probate Code provides that agency law applies to power of attorney, attorney in fact, and principal issues, unless the Probate Code contains a provision that states otherwise or that directly addresses the issue at hand. I very seldom hear discussions in court about statutes that address powers of attorney, or actions and responsibilities and decision making thereunder. The following are a couple of those statutes.

California Probate Code Section 4234 – (a) To the extent reasonably practicable under the circumstances, an attorney-in-fact has a duty to keep in regular contact with the principal, to communicate with the principal, and to follow the instructions of the principal.

California Probate Code Section 4657 – A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption affecting the burden of proof.

California Probate Code Section 4684 – An agent shall make a health care decision in accordance with the principal’s individual health care instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent’s determination of the principal’s best interest. In determining the principal’s best interest, the agent shall consider the principal’s personal values to the extent known to the agent.

As you can see, the attorney in fact, assuming that he or she is in fact acting under the power of attorney and as an attorney in fact for the specific situation, issue or action at hand, should be communicating with the principal about important issues and the principal’s wishes and decisions with respect to those issues. And there is or might be an actual or implied presumption that the principal has decision making capacity and is making the decision in that circumstance.